Understanding what waste really means

The definition 'waste' under the Waste Framework Directive continues to baffle. And a recent European Court ruling has raised the risk of criminal sanctions for waste offences. Eluned Watson and Laura Brady report.

The difficult issue of determining which substances fall within the definition of "waste" under the Waste Framework Directive (WFD) has been an ongoing source of debate and confusion for industry and lawyers alike.

The latest in the ever growing number of cases to address the definition of waste is that of the Crown (on the application of Thames Water Utilities Ltd) versus South East London Division, Bromley Magistrates' Court.

Here, the European Court of Justice (ECJ) held that wastewater that escaped from a sewerage network maintained by the statutory sewerage undertaker constituted waste within the meaning of the WFD.

This ruling will have significant implications for the water industry as statutory sewerage undertakers could now be at greater risk of facing criminal sanctions for waste offences under the Environmental Protection Act 1990 arising from any leaks, whether accidental or not, of sewage into "controlled waters" or land.

Thames Water Utilities (TWU), a statutory sewerage undertaker responsible for about 80,000km of sewerage pipes in the Thames region, was prosecuted by the Environment Agency (EA) for illegally depositing waste. It was alleged that between February and April 2003 untreated sewage escaped on 11 occasions from faulty pipes within TWU's sewerage network and subsequently discharged onto land and into "controlled waters" in Kent.

Thames was prosecuted for committing an offence pursuant to section 33(1) of the Environmental Protection Act 1990 (EPA). Section 33(1) of the EPA provides that: "A person shall not deposit 'controlled waste'... in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence." Section 75(4) of the EPA defines controlled waste as "household, industrial and commercial waste or any such waste".

Bromley Magistrates Court refused to rule on the point of law as to whether sewage escaping from networks maintained by a sewerage undertaker, such as Thames, constituted "controlled waste" for the purposes of the English legislation.

Thames brought an action before the High Court for judicial review of the Magistrates Court's refusal to give a ruling.

The High Court decided to stay the proceedings and referred the matter to the ECJ for a preliminary ruling.

The High Court asked the ECJ to consider two separate questions:
· Whether sewage that escapes from a sewerage network maintained by a statutory undertaker, pursuant to the Urban Waste Water Treatment Directive (the Waste Water Directive) and/or the Water Industry Act 1991 amounts to "waste" for the purposes of the WFD
· And, if the answer to the above is in the affirmative, whether the sewage was excluded from the scope of "waste" pursuant to the WFD by virtue of Article 2(1)(b)(iv) of the WFD, in particular by virtue of the Waste Water Directive and/or the Water Industry Act 1991; or comes within Article 2(2) of the WFD and is excluded from the scope of "waste" under the WFD, in particular by virtue of the Waste Water Directive.

Environment policy
With regard to the first question, the ECJ had to determine whether wastewater constitutes waste within the meaning of the WFD where it escapes from a sewerage network maintained by a statutory undertaker. Article 1(a) of the WFD defines waste as "any substance or object set out in Annex 1 which the holder discards or intends to discard".

Annex 1 provides a list of substances and objects that can be classified as waste. However, this list provides guidance only and is not deemed to be exhaustive. The classification of waste is to be inferred from the actions of the holder and the meaning of the term discard.

Article 2 (1) of the WFD sets out types of waste that may, in certain circumstances be excluded from the scope of the WFD, even if the waste in question falls within the definition set out in Article 1(a).

Under Article 2(1)(b)(iv) of the WFD an exclusion is provided for "waste waters, with the exception of waste in liquid form". The ECJ held that it was clear from this provision that the Community legislation intended to classify wastewater as waste within the meaning of the WFD.

The ECJ then went on to consider the term "discard" and held it was to be interpreted widely taking into consideration not only the aims of the WFD, being the protection of human health and the environment against the collection, transport, treatment, storage and tipping of waste, but also Article 174(2) EC.

Article 174(2) provides that: "Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the community. It shall be based on the precautionary principle and on the principle that preventative action should be taken..."

The ECJ concluded that "to discard" cannot be interpreted restrictively, and the escape of wastewater from a sewerage network constitutes an event by which the sewerage undertaker, the holder of the wastewater "discards it".

The ECJ relied on its previous judgment where it held that the accidental spillage of hydrocarbons on to land could be regarded as an action by which the holder "discards" them (see Van de Walle and Others [2004] ECR I-7613).

Therefore, in answer to question one, the ECJ held that wastewater escaping from a sewerage network maintained by a statutory sewerage undertaker constitutes waste within the meaning of the WFD.

Waste disposal
In dealing with the first part of the second question, the ECJ sought to establish whether wastewater that escapes from a sewerage network is waste falling outside the scope of the WFD by virtue of Article 2(1)(b)(iv) and in particular by virtue of the Waste Water Directive and/or the Water Industry Act 1991.

Under Article 2(1)(b)(iv) wastewaters are excluded from the scope of the WFD, providing that they are already covered by "other legislation".

This "other legislation" may include national legislation. But the legislation in question must not just relate to a particular substance, but must contain precise provisions organising its management as waste and ensure a level of protection of the environment from the waste in question which is at least equivalent to that provided for in the WFD.

While the Waste Water Directive regulates the collection, treatment and discharge of wastewater, it does not set out any objectives as to the disposal of waste or decontamination of contaminated soil.

Therefore, the ECJ held that the Waste Water Directive cannot be regarded as "other legislation", as it does not provide for an equivalent level of protection of the environment for wastewaters as that set out in the WFD. Therefore, wastewater does not fall outside the scope of the WFD.

But, in respect of national legislation, the ECJ refused to rule. In its judgment, the ECJ found it was for the national courts to determine whether their own legislation constituted "other legislation" for the purposes of the WFD.

This determination would be dependent on whether the national legislation contains precise provisions organising the management of the waste in question, and if they are such as to ensure a level of protection of the environment equivalent to that guaranteed by the WFD.

If this is the case, it is possible that the wastewater escaping from a sewerage network could fall outside the scope of the WFD.

For the second part of the question, Article 2(2) of the WFD provides that specific rules for particular instances or supplementary rules on the management of particular categories of waste may be laid down by means of individual directives.

Such individual directives may be considered to be special legislation to the WFD, so that their provisions prevail over those of the WFD. But the ECJ reiterated that the Waste Water Directive does not contain specific provisions concerning wastewater escaping from a sewerage network. And, as such, it cannot be regarded as providing specific rules of the type necessary to exclude escaped wastewater from the scope of the WFD.

Criminal sanctions
The Thames Water Case establishes that wastewater escaping from a sewerage
network maintained by a sewerage undertaker constitutes waste. Ultimately, it will now be for the High Court to determine whether the English legislation constitutes "other legislation" for the purposes of the WFD and therefore whether wastewater is excluded from the scope of the WFD.

The ruling means that water companies acting as statutory sewerage undertakers are at risk of facing criminal sanctions under section 33 of the EPA in the event that untreated sewage escapes into "controlled waters" or onto land.

Persons who commit an offence under section 33 of the EPA are liable to a fine of up to £50,000 and/or imprisonment for up to 12 months in the Magistrates Court, and an unlimited fine and/or imprisonment for up to five years in the Crown Court.

Also, the courts may order that offenders pay costs incurred by the Environment Agency, the waste collection authority or the owner/occupier of the land in removing the illegally deposited waste and/or carrying out remedial action.

It should be noted that the Thames Water Case is only one of several cases that has considered the application of the WFD and the definition of waste.

Another recent case - United Utilities Water Plc versus Environment Agency for England and Wales (2006) - considered whether sewage sludge is "waste" within the WFD and therefore covered by the Pollution Prevention and Control Regulations (PPC Regulations) and the Integrated Pollution Prevention and Control Directive.

Unfortunately for the water industry, the ECJ held that there could be no doubt that sewage sludge is waste; that urban wastewater containing sludge is "waste in liquid form" and that the PPC Regulations were intended to apply to wastewater treatment activities.

While the United Utilities and the Thames Water cases further expand the definition of "waste" and will result in significant implications for both the wastewater industry and other industrial sectors undertaking water treatment activities, the definition of "waste" still remains uncertain.

The WFD was amended in 2006 by Directive 2006/12. But the amended directive has done nothing to clarify the position. The European Commission has issued proposals to revise the WFD, which aim to clarify the definition of when waste ceases to be waste and to simplify European waste legislation.

Change to EU waste legislation and its interaction with our domestic legislation means that this will continue to be an area that the water industry will need to watch carefully.

Eluned Watson and Laura Brady are with law firm Pinsent Masons.
T: 0121 200 1050.

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